Opposition — Everett C. McKethan v. United States

_——_

Supreme Court, U.S)

FILED |

Nos. 77-1545 and 77-1557 JUN 30 1978

eal

| MICHAEL RODAK, JR., CLERK

In the Supreav Court of the United States

OCTOBER TERM, 1977

EVERETT C. MCKETHAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

EARL A. GARNER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.,

Solicitor General,

JOHN C. KEENEY,

Acting Assistant Attorney General,

JEROME M. FEIT,

WILLIAM C. BROWN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

SESS STS aS

Page

Opinion below 1

Jurisdiction CC 2

Questions presented 2

Statement Cis 2

ge aS a 5

Conclusion CC 17

CITATIONS

Cases: 2

American Tobacco Co. v. United States,

EASES oer ve eee Se 14

Barber v. Page, 390 U.S. 719 9

Blockburger v. United States, 284 U.S.

I nelle ccteeniathdeiadctindaitainaddaecctaddini asec 15

Braverman v. United States, 317 U.S. 49. 13, 14,

16

California v. Green, 399 U.S. 149 10

Chambers v. Mississippi, 410 U.S. 284 ___ 9-10

Dutton v. Evans, 400 U.S. 74 10, 12

Gore v. United States, 357 U.S. 386 ____ 15

Kirby v. United States, 174 U.S. 47 ____ 10

Mattox v. United States, 156 U.S. 237 ___ 10,11

Pointer v. Texas, 380 U.S. 400 9,10

Snyder v. Massachusetts, 291 U.S. 97 ___. 10

United States v. Adcock, 487 F. 2d 637. 16

United States v. Arteaga-Limones, 529

F. 2d 1183, certiorari denied, 429 U.S.

I: deaivenseibiiitiMiaMia ta 15

United States v. Bailey, 439 F. Supp.

SENIEE iota Uichiciceheia diel aicatinnitiaenmesedsiiinecitainee 12

Cases—continued : Page

United States v. Carlson, 547 F. 2d 1346,

certiorari denied, 431 U.S. 914 7

United States v. Fiore, 443 F. 2d 112 _.... 12, 13

United States v. Gonzalez, 559 F. 2d 1271 - 8

United States v. Honneus, 508 F. 2d 566,

certiorari denied, 421 U.S. 948 _._. 16

United States v. Houltin, 525 F. 2d 943,

vacated on other grounds sub nom.

Croucher v. United States, 429 U.S.

1034 - 15-16

United States \ v. . James, 494 KF. 2d 1007,

certiorari denied swb nom. Jackson v.

United States, 419 U.S. 1020 — 16

United States v. Marotta, 518 F. 2d 681__. 16

United States v. Medico, 557 F. 2d 309,

certiorari denied, No. 77-5210, Decem-

dS , Se 11,13

United States v. Rivera Diaz, 538 F. 2d

461 - 16

United States v v. . Ward, 552 F. 2d 1080,

certiorari denied, No. 76-6920, Octo-

ber 3, 1977 __.. Pa 9

United States v. Warholic, C.A. 9, No. 76-

1206, decided December 10, 1976, cer-

tiorari denied, 431 U.S. 905 15

United States v. West, C.A. 4, Nos. 76-

1837 through 76-1843, decided Febru-

FY 1B, BOG acs-<sndidvsmmnaaaiidiie 7,12

Constitution, statutes and rules:

United States Constitution:

Fifth Amendment, Double witha

Clause __. eve 15

Constitution, statutes and rules—continued: Page

Sixth Amendment, Confrontation

a 2,9, 10, 11, 12

Comprehensive Drug Abuse Prevention

and Control Act of 1970, 84 Stat. 1236. 15

21 U.S.C. 846 2, 3, 18, 15, 16

RS eee 3

21 U.S.C. 9638 2, 3, 13, 15, 16

Ec 14

Se va 3

Federal Rules of Evidence:

ie 12

Rule 803(24) 0. sig 11

a 7

Rule 804(b) (5) 2, 4, 6, 8, 9, 11, 12,13

Miscellaneous:

Advisory Committee Note to Rule 803

(24), Federal Rules of Evidence, 56

F.R.D. 183, 320 10

H.R. Rep. No. 93-650, 93d Cong., ist Sess.

EE 11

McCormick on Evidence (2d ed. 1972)... 10

S. Rep. No. 93-1277, 93d Cong., 2d Sess.

ee 11

4 Weinstein’s Evidence (1977) 12

Iu the Suywrene Court of the United States

OCTOBER TERM, 1977

No. 77-1545

EYERETT C. MCKETHAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 77-1557

EARL A. GARNER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)’

is not yet reported.

2 “Pet. App.” refers to the appendix to the petition in No. 77-

1545.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on February 17, 1978. After consideration of a peti-

tion for rehearing, the court issued a revised opinion

on March 30, 1978. The petition for a writ of cer-

tiorari in No. 77-1545 was filed on April 28, 1978,

and the petition in No. 77-1557 was filed on April 29,

1978. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the grand jury testimony of a witness

who was unavailable at trial for direct examination

by the government or full cross-examination by peti-

tioners was properly admitted into evidence under

Rule 804(b)(5) of the Federal Rules of Evidence.

2. Whether introduction of the witness’s grand

jury testimony at trial violated the Confrontation

Clause of the Sixth Amendment.

3. Whether, on the facts of this case, petitioner

Garner was properly convicted of both conspiracy to

import heroin, in violation of 21 U.S.C. 963, and

conspiracy to distribute heroin, in violation of 21

U.S.C. 846.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Virginia, petitioner

Garner was convicted of conspiracy to import heroin,

in violation of 21 U.S.C. 963, conspiracy to distribute

and to possess with intent to distribute heroin, in

violation of 21 U.S.C. 846, and importation of heroin,

in violation of 21 U.S.C. 952(a). Petitioner Mc-

Kethan was convicted of conspiracy to import heroin,

in violation of 21 U.S.C. 963, and traveling in foreign

commerce in furtherance of the unlawful heroin im-

portation enterprise, in violation of the Travel Act,

18 U.S.C. 1952. Petitioner Garner was sentenced to

consecutive terms of ten years’ imprisonment and

three years’ special parole on each count. Petitioner

McKethan was sentenced to five years’ imprisonment

and three years’ special parole on his conspiracy con-

viction and to a consecutive one-year term of imprison-

ment on the Travel Act conviction. The court of ap-

peals affirmed, with one judge dissenting in part

(Pet. App. A).

Petitioners were charged as principal participants

in conspiracies formed in July 1974 for the purpose

of importing large quantities of heroin into the United

States from Europe and then distributing the nar-

cotics in the Washington, D.C. area. Among those

named as co-conspirators with petitioners were War-

ren Robinson, Mary McKee, Henry Thompson, Teresa

Hallums and Thomas Harley. At trial, the govern-

ment sought to rely heavily on the testimony of Robin-

son, who had pleaded guilty to two charges based on

his role in the heroin importation and distribution

enterprise prior to trial and had appeared as a witness

before the grand jury (Pet. App. 4a-5a). When called

as a witness at trial, however, Robinson refused to

testify (Pet. App. 5a). He persisted in this refusal

4

without explanation even after he had been granted

use immunity and had been threatened by the dis-

trict court with contempt (ibid.). The court then

ruled that Robinson was unavailable as a witness and

allowed his grand jury testimony to be admitted into

evidence pursuant to Rule 804(b) (5), Fed. R. Evid.

(Tr. 320).

Robinson’s grand jury testimony established that

in 1974 petitioner Garner approached him with in-

formation that petitioner McKethan had a source for

large quantities of heroin in West Germany (G. Ex.

70, p. 2). During the next several months, petitioners

and Robinson traveled to Europe on eight separate

occasions to purchase the heroin. On a trip to Frank-

furt in July or August 1974, petitioner McKethan

introduced petitioner Garner to his contact, known as

“T.” from whom they purchased about ten ounces

of heroin for $12,000 (id. at 12-13).* Petitioner

Garner transported the heroin to the United States,

and he and Robinson sold it in the Washington area

for about $25,000 (id. at 13). Robinson later paid

petitioner McKethan $10,000 for his assistance in

the transaction (id. at 45-46). The profits from these

sales were used by petitioners and Robinson to make

additional visits to West Germany and Holland for

the purpose of purchasing larger and larger quantities

of heroin, culminating in March 1975 with the pur-

chase of two kilograms of heroin in Amsterdam for

2 “T’? was a code name for Thompson, petitioner McKethan’s

cousin (Pet. App. 9a).

5

$90,000 (id. at 57). Robinson traveled with petitioner

Garner on two of these trips and was informed by

petitioners of the other ones.

On one of the European trips petitioner Garner

and Robinson were accompanied by McKee and Hal-

lums, who returned separately to the United States

with the heroin concealed in their girdles. The women

subsequently delivered the narcotics to petitioner

Garner and Robinson (G. Ex. 70, pp. 21-27). McKee

testified at trial and fully corroborated Robinson’s

description of the trip (Tr. 172-190). Records of air-

line tickets, custom declarations, passport endorse-

ments, and European hotel registrations also con-

firmed that petitioner McKethan had made five trips

to western Europe between July 1974 and March 1975

and that petitioner Garner had made seven such trips

in the same period (Pet. App. 8a-9a). These records

further showed that petitioner McKethan had been in

Amsterdam in early September 1974, about the time

Robinson testified that he had arranged petitioners’

first contact with a Chinese supplier in that city (id.

at 9a). Petitioners were also in Copenhagen at the

same time in December 1974 and apparently were on

the same flights to Copenhagen and Amsterdam in

March 1975 (ibid.).

ARGUMENT

1. Petitioners contend that the district court erred

in admitting Robinson’s grand jury testimony because

(a) the testimony did not satisfy the “trustworthi-

ness” requirement of the exception to the hearsay rule

6

provided by Rule 804(b) (5) of the Federal Rules of

Evidence and (b) admission of the testimony, even

if authorized by Rule 804(b) (5), violated the Con-

frontation Clause of the Sixth Amendment.

a. Rule 804(b) (5), Fed. R. Evid., provides:

Hearsay exceptions. The following are not ex-

cluded by the hearsay rule if the declarant is

unavailable as a witness:

(5) Other exceptions. A statement not spe-

cifically covered by any of the foregoing excep-

tions but having equivalent circumstantial guar-

antees of trustworthiness, if the court determines

that (A) the statement is offered as evidence of

a material fact; (B) the statement is more

probative on the point for which it is offered than

any other evidence which the proponent can pro-

cure through reasonable efforts; and (C) the

general purposes of these rules and the interests

of justice will best be served by admission of the

statement into evidence. However, a statement

may not be admitted under this exception unless

the proponent of it makes known to the adverse

party sufficiently in advance of the trial or hear-

ing to provide the adverse party with a fair

opportunity to prepare to meet it, his intention

to offer the statement and the particulars of it,

including the name and address of the declarant.

Thus, contrary to petitioners’ assertions (Pet. 13;

Pet. No. 77-1557, p. 9), testimony before a grand

jury is not made routinely admissible by Rule 804

(b) (5). The Rule requires that before an out-of-court

7

statement may be introduced at trial the district

court must determine that the declarant is unavail-

able, that “the statement is offered as evidence of a

material fact,” that “the statement is more probative

on the point for which it is offered than any other

evidence which the proponent can procure through

reasonable efforts,” and that “the general purposes

of these rules and the interests of justice will best be

served by admission of the statement into evidence.”

Petitioners apparently do not dispute that these con-

ditions were satisfied here.

The Rule also requires that the statement have

“circumstantial guarantees of trustworthiness” equiv-

alent to the traditional hearsay exceptions listed else-

where in Rule 804, namely, prior testimony subject

to cross-examination, dying declarations, statements

against interest, or statements of personal or family

history. In this case the court of appeals carefully

assessed Robinson’s grand jury testimony—which was

based on his personal knowledge, which was given

under oath, and for which he was subject to the pen-

alties of perjury—in light of all of the other evidence

at trial and properly found that the “strong indica-

tors of reliability” (Pet. App. 8a) present here were

sufficient to satisfy the trustworthiness requirement

of the Rule (id. at 7a-12a). See United States v.

West, C.A. 4, Nos. 76-1837 through 76-1843, decided

February 13, 1978 (reproduced in Pet. App. B);

United States v. Carlson, 547 F. 2d 1346, 1354 (C.A.

8), certiorari denied, 431 U.S. 914.

The court below noted that McKee, who had ac-

companied Robinson and petitioner Garner to Amster-

dam on their trip in October 1974, testified at trial

and fully corroborated the details of Robinson’s grand

jury testimony about the trip (Pet. App. 8a). Fur-

thermore, records of airline tickets, customs declara-

tions, passport endorsements, and European hotel

registrations provided “irrefutable evidence of [the]

travels” of petitioners, Robinson and Thompson, a co-

conspirator used initially as a heroin contact and

then as a courier (id. at 8a-10a). Finally, petitioner

McKethan’s testimony at trial failed to provide a

credible explanation of those travels (id. at 10a-1la).

In sum, as the court of appeals concluded, “[t]he only

believable explanation of the frequent trips is that

offered by Robinson in his grand jury testimony, and

the record of the trips strongly tends to corroborate

the testimony” (id. at 10a). This factual determina-

tion, concurred in by both courts below, does not re-

quire further review.’

8 Petitioners’ claim that the court of appeals’ holding con-

flicts with United States v. Gonzalez, 559 F. 2d 1271 (C.A.

5), is unfounded. In Gonzalez, the court held only that the

particular grand jury testimony in that case was not suffi-

ciently reliable to be admitted under Rule 804(b) (5). Unlike

Robinson’s testimony, the grand jury testimony in Gonzalez

did not provide detailed facts concerning the defendant and

was not corroborated by substantial other evidence in the

case, and the declarant was an unwilling witness who agreed

to testify only after he had been threatened with repeated

appearances before successive grand juries and an unlimited

number of six-month contempt sentences if he did not testify

and name his co-conspirator. Jd. at 1272-1273. In other in-

b. Petitioners’ contention that the admission of

Robinson’s grand jury testimony violated the Con-

frontation Clause is also incorrect. To begin with,

this is not a case, such as Pointer v. Texas, 380 U.S.

400, in which an out-of-court declarant was com-

pletely unavailable for confrontation by the defense. —

After his grand jury testimony had been read to the

jury, Robinson was called to the stand by defense

counsel and testified that he had told the government

attorney that his grand jury testimony was inac-

curate (Tr. 565). He also asserted that he had had

no drug dealings with petitioners (Tr. 565, 568).

Robinson then repeated his earlier statement that

he was not going to testify, and, in response to most

further questions, he either stated that he had no

knowledge or he refused to answer (Tr. 565-576).

Thus, although the cross-examination was restricted,

the jury did have the opportunity to see and hear

Robinson testify on the matter, and, as the court of

appeals observed, what they saw and heard may weil

have been of substantial assistance in assessing the

truthfulness of Robinson’s grand jury testimony (Pet.

App. 12a). See Barber v. Page, 390 U.S. 719, 725.

The Confrontation Clause has never been construed

to create an absolute bar to the admission of hearsay

testimony by an unavailable declarant. See Chambers

stances, in which the out-of-court testimony was more reliable,

the Fifth Circuit, like the Fourth, has upheld the admissibility

of evidence under Rule 804(b) (5). See United States v. Ward,

552 F. 2d 1080, 1083 (C.A. 5), certiorari denied, No. 76-6920,

October 3, 1977.

10

v. Mississippi, 410 U.S. 284, 295. As the Court noted

in Dutton v. Evans, 400 U.S. 74, 89, “the mission of

the Confrontation Clause is to advance a practical

concern for the accuracy of the truth-determining

process in criminal trials * * *.” Hence, hearsay testi-

mony is frequently introduced in the form of, e.g.,

former testimony, dying declarations, and statements

against interest, and, although the defendant may be

deprived of the opportunity literally to “confront”

his accuser at trial, the constitutionality of admitting

such evidence has repeatedly been upheld. See, e.g.,

Mattox v. United States, 156 U.S. 237, 243; Kirby

v. United States, 174 U.S. 47, 61; Pointer v. Texas,

supra, 380 U.S. at 407; California v. Green, 399 U.S.

149, 165-168. See generally McCormick on Evidence

606-607 (2d ed. 1972). The Sixth Amendment is not

offended in these situations because the hearsay state-

ment carries a substantial guarantee of reliability,

either because of its context or its content, and the

obvious need for the evidence, lest the truth-finding

process be perverted, outweighs the arguments ad-

vanced for exclusion.

The proposed Federal Rules of Evidence, as pre-

scribed by this Court and transmitted to Congress,

contained a residual hearsay exception in addition to

these traditiunal exceptions because, according to the

Advisory Committee Notes, it would be “presumptu-

ous to assume that all possible desirable exceptions to

the hearsay rule have been catalogued * * *” (56

F.R.D. 183, 320). See Snyder v. Massachusetts, 291

U.S. 97, 107 (“The exceptions [to the hearsay rule]

11

are not even static, but may be enlarged from time to

time if there is no material departure from the rea-

son of the general rule”). See also Mattox v. United

States, supra, 156 U.S. at 248-244. Although the

House Committee on the Judiciary voted to delete the

residual exception because it felt that the provisions.

injected “too much uncertainty into the law of evi-

dence and [might impair] the ability of practitioners

to prepare for trial” (H.R. Rep. No. 93-650, 93d

Cong., Ist Sess. 5-0 (1973)), the Senate Judiciary

Committee adopted Rule 804(b) (5) and its counter-

part, Rule 803(24), in their present form. The Sen-

ate Committee observed that the rules were not in-

tended as “a broad license” to trial judges to admit

hearsay testimony but were designed for “exceptional

circumstances,” and it admonished judges to “exercise

no less care, reflection and caution than the courts did

under the common law in establishing the now-

recognized exceptions to the hearsay rule.” S. Rep.

No. 93-1277, 93d Cong., 2d Sess. 20 (1974). The

Senate proposals were accepted by the Conference

Committee and enacted into law. See United States

v. Medico, 557 F. 2d 309, 314-315 (C.A. 2), cer-

tiorari denied, No. 77-5210, December 5, 1977.

Rule 804(b) (5) thus satisfies the central concerns

of the Confrontation Clause by prohibiting the intro-

duction of cut-of-court statements of an unavailable

declarant unless the statements meet three specified

criteria, which confine the availability of the excep-

tion to a limited group of cases in which the public

12

need for the evidence is apparent, and also contain

substantial guarantees of trustworthiness equivalent

to those that gave rise at common law to the estab-

lished hearsay exceptions recognized elsewhere in

the Rule. The court below was sensitive to these

Sixth Amendment considerations, remarking in its

opinion in United States v. West, supra, that “[e]ach

case must be examined on its own facts” and re-

fusing to hold that “all hearsay admissible under

the 804(b) (5) exception to the rule against hearsay

can be admitted without violation of the Confronta-

tion Clause rights of a defendant” (Pet. App. 27a

n. 7).° After a thorough review of the circumstances

of this case, the court held only that, in light of the

substantial indications of reliability discussed above,

the admission of Robinson’s prior testimony was au-

thorized by Rule 804(b) (5) and did not violate the

interests protected by the Confrontation Clause. See

Dutton v. Evans, supra, 400 U.S. at 89; United States

v. Bailey, 439 F. Supp. 1303, 1306-1308 (W.D. Pa.).°

¢ Even if the stringent requirements of the Rule have been

satisfied, the trial judge possesses discretion to refuse admis-

sion of the evidence for other reasons. See Fed. R. Evid. 403;

4 Weinstein’s Evidence { 804(b) (5) [01] at p. 804-102 (1977).

‘Thus, petitioner McKethan’s statement that the court of

appeals “equat[ed] the question of admissibility under the

rules of evidence with admissibility under the Confrontation

Clause” (Pet. 10) is incorrect.

* This holding does not conflict with United States v. Fiore,

443 F. 2d 112 (C.A. 2), where the court stated that the admis-

sion of the grand jury testimony of a witness not subject to

cross-examination at trial “would appear to offend not only

13

3. Petitioner Garner received consecutive sentences

of ten years’ imprisonment on his convictions of con-

spiracy to import heroin, in violation of 21 U.S.C. 963,

and conspiracy to distribute heroin, in violation of 21

U.S.C. 846. He argues (Pet. 14-16) that the govern-

ment proved only a single agreement encompassing

both importation and distribution and that the imposi-

tion of successive sentences runs afoul of this Court’s

ruling in Braverman v. United States, 317 U.S. 49.

From the facts adduced at trial, however, the jury

might reasonably have concluded that petitioner

Garner engaged in two conspiracies, one to import the

heroin and another to distribute the drug within the

United States. The evidence did not suggest that

petitioner McKethan was a part of the distribution

business conducted jointly by petitioner Garner and

Robinson (Pet. App. 10a-1la). Rather, petitioner Mc-

Kethan’s role was to locate foreign sources and assist

in 4e importation scheme in Europe (id. at 11a).

Thus, the jury could have concluded that petitioner

Garner entered into an agreement with petitioner

McKethan and others to import the heroin and had a

separate agreement with Robinson and others to dis-

tribute that heroin. Indeed, the jury’s acquittal of

the hearsay rule * * * but the confrontation clause * * * as

well.” Id. at 115. Fiore was decided before the adoption of

Rule 804 (b) (5), and the witness in that case, unlike Robinson,

was not subjected to even a limited cross-examination. The

Second Circuit subsequently has upheld the admission of evi-

dence under Rule 804(b) (5) where “several factors con-

tribute[d] to the reliability of [the] testimony.” United States

Vv. Medico, supra, 557 F. 2d at 315.

14

petitioner McKethan on the charge of conspiracy to

distribute heroin, while convicting him of conspiracy

to import it, strongly supports this conclusion.

However that may be, petitioner’s reliance on

Braverman v. United States, supra, is misplaced. Al-

though the Court concluded in Braverman that a single

agreement to commit several unlawful acts could not

be punished by multiple convictions under the general

conspiracy statute, 18 U.S.C. 371, its holding did not

reach the situation, presented here, where two specific

conspiracy statutes are violated. This was settled in

American Tobacco Co. v. United States, 328 U.S. 781,

where the defendants, convicted of conspiracy to re-

strain trade, in violation of Section 1 of the Sherman

Act, and conspiracy to monopolize, in violation of Sec-

tion 2 of that statute, argued that Braverman barred

two convictions for what they alleged was “but one

conspiracy, namely, a conspiracy to fix prices” (328

U.S. at 788). This Court rejected the claim, holding

that a single agreement with several unlawful objects

might amount to more than one conspiracy if different

elements of the agreement violate different conspiracy

statutes: “In contrast to the single conspiracy de-

scribed in [Braverman] in separate counts, all

charged under the general conspiracy statute [18

U.S.C. 371], we have here separate statutory offenses,

one a conspiracy in restraint of trade that may stop

short of monopoly, and the other a conspiracy to

monopolize that may not be content with restraint

15

short of monopoly. One is made criminal by § 1 and

the other by § 2 of the Sherman Act” (ibid.)."

The same reasoning applies here. Petitioner vio-

lated two distinct criminal statutes, each aimed at

preventing a different evil and each prescribing a

separate punishment.‘ In enacting these statutes, .

Congress determined that a conspiracy both to import

heroin into the United States and to distribute the

heroin within the country presented greater harm to

our nation, and hence was deserving of greater poten-

tial punishment, than did a conspiracy to import

heroin for personal use or a conspiracy to distribute

heroin already available within the country. Accord-

ingly, the court of appeals properly upheld the multi-

ple convictions and consecutive sentences imposed

upon petitioner Garner on the conspiracy counts.

Accord, United States v. Warholic, C.A. 9, No. 76-

1206, decided December 10, 1976 (unpublished), cer-

tiorari denied, 431 U.S. 905; United States v. Arteaga-

Limones, 529 F. 2d 1183, 1194 (C.A. 5), certiorari

denied, 429 U.S. 920; United States v. Houltin, 525

F. 2d 943, 950-952 (C.A. 5), vacated on other grounds

*It is clear that Congress may punish separately several

aspects of a single transaction without offending the Double

Jeopardy Clause. See Gore v. United States, 357 U.S. 386,

389-390; Blockburger v. United States, 284 U.S. 299, 301-304.

* Sections 846 and 963 of Title 21 were passed as part of

the Comprehensive Drug Abuse Prevention and Control Act

of 1970, 84 Stat. 1236. Congress would have enacted only a

single narcotics conspiracy statute if petitioner Garner’s as-

sertions regarding legislative intent (Pet. 15) were correct.

16

sub nom. Croucher v. United States, 429 U.S. 1034;

United States v. Marotta, 518 F. 2d 681, 684-685

(C.A. 9). See also United States v. James, 494 F. 2d

1007, 1025-1026 (C.A. D.C.), certiorari denied sub

nom. Jackson v. United States, 419 U.S. 1020.

We recognize that two circuits, relying on Braver-

man, have held that an individual who enters into a

single agreement to import and to distribute a con-

trolled substance may not be separately convicted and

punished under Sections 846 and 963. United States

v. Rivera Diaz, 538 F. 2d 461 (C.A. 1); United

States v. Honneus, 508 F. 2d 566 (C.A. 1), certiorari

denied, 421 U.S. 948; United States v. Adcock, 487

F. 2d 637 (C.A. 6). For the reasons discussed above,

we believe that these cases are based upon a misin-

terpretation of Braverman and of the congressional

intent in enacting Sections 846 and 963. They are, in

any event, distinguishable from the present case be-

cause they each involved an indivisible, continuous con-

spiracy stemming from a single agreement. The First

and Sixth Circuits both recognized that Congress has

the power to condemn different aspects of related con-

duct if, as here, there are meaningful distinctions

between the elements constituting each offense. United

States v. Honneus, supra, 508 F. 2d at 569; United

States v. Adcock, supra, 487 F. 2d at 639-640.

17

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCRreEE, Jr.,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General.

JEROME M. FEI,

WILLIAM C. Brown,

Attorneys.

JUNE 1978.

® ov. 8. coveenwent paimvine orrice; 1976 266358 50